• The U.S. Supreme Court Ends Term on High Note for Employers
  • October 1, 2013
  • Law Firm: Kaufman Canoles A Professional Corporation - Norfolk Office
  • In a session followed more avidly for its consideration of same-sex marriage issues than employment law, the Supreme Court issued two hotly-contested, 5-4 decisions during the last week of its Term, each of which provides employers with both significant guidance and some protection against employee suits. Critically, the two cases involved retaliation claims and harassment claims - the two most common types of Charges submitted to the Equal Employment Opportunity Commission ("EEOC"), according to current figures.

    First, retaliation - the fastest-growing as well as most frequent category of discrimination charges: For years, the courts have struggled with employment actions that are motivated by both lawful and unlawful reasons. These "mixed motive" cases were addressed by Congress in the Civil Rights Act of 1991, which generally permits a plaintiff to recover if discrimination was "a motivating factor" in the employment decision, even if the employer shows the same decision would have been taken in the absence of discrimination. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court held that retaliation cases are outside the "mixed motive" tent. So, if a retaliation-claim plaintiff proves that he/she was fired for both a lawful reason and in retaliation for a protected complaint, that retaliation plaintiff loses. Instead, a retaliation plaintiff must prove that he/she would not have been fired "but for" the retaliation - it is not enough to show that retaliation is "a motivating factor" in the company's employment decision.

    Next, harassment: Determining who is, and who is not, a "supervisor" can play a critical role in determining whether a company will be held liable for harassment committed by an employee. If a worker was harassed by a "mere" co-worker, the company may not be held liable unless the company itself was negligent in controlling the harasser. However, if the harasser is a "supervisor," the company is strictly liable for any harassment that results in a "tangible employment action." Even where there is no "tangible employment action," harassment by a supervisor makes the company strictly liable unless the company can prove a separate "affirmative defense" (that is, that the employer exercised reasonable care to prevent the harassment and that the employee failed to take advantage of the preventive or corrective opportunities the employer offered). Obviously, employees' lawyers argue that the least little bit of authority makes a harassing co-worker into a "supervisor" - and that the employer is accordingly subject to automatic, strict liability, without the need for the plaintiff to prove any negligence by the company. Also, the EEOC took the more expansive view of who is a "supervisor," writing in its 1999 Guidance on harassment that a "supervisor" is any co-worker who has the ability to exercise any significant direction over a plaintiff's work.

    In Vance v. Ball State University, the Supreme Court rejected this broad view of employer liability, calling the EEOC’s position "murky," "nebulous" and "a study in ambiguity." Rather, in order to expose a company to the higher risk of liability inherent in harassment by a supervisor, the company must have given the harasser the authority (even if not exercised in that particular case) to effect a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. The Court's clarification of the nature of a "supervisor" for purposes of employment harassment cases will force many more plaintiffs to come forward with evidence that the company itself acted negligently - not just that some bossy co-worker acted inappropriately or even outrageously.